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Lord Hardie moved Amendment No. 52:

Page 16, line 25, after ("by") insert ("an order under subsection (4)(a) above or").

The noble and learned Lord said: My Lords, in moving Amendment No. 52, I should like to speak also to Amendment No. 57. In Committee, the noble and learned Lord, Lord Mackay of Drumadoon, expressed concern that breach of an interim sex offender order had not been made a criminal offence. That would mean that a breach would have to be pursued as a civil contempt of court and that the police would not be able to make an arrest, no matter how serious the circumstances. I entirely agree that that would be anomalous and undesirable. Our overriding concern is to take public safety into account in framing the provisions. There would also be merit in having an internally coherent system to deal with breaches.

The amendments therefore provide that breaching an interim order is a criminal offence, that the provisions relating to breach in Clause 21 will apply to interim orders as to sex offender orders, and that the power of the police to arrest those who breach orders, which the Committee supported, should extend to breach of interim orders. These amendments will ensure that breach of interim orders (which will, after all, be made only in the most serious and pressing cases) can be treated appropriately by the police. I beg to move.

Lord Mackay of Drumadoon: My Lords, I welcome the fact that these amendments have been tabled, because they fully address one of the issues that I raised in Committee. Unfortunately, I no longer have before me the letter which the noble and learned Lord wrote. I wonder whether it dealt also with another issue on which I believe that I touched in Committee, which was whether the power of arrest, referred to in Clause 19(8)

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should also apply to interim sex offender orders. Perhaps I may invite the noble and learned Lord to consider that matter further before the Bill returns to the House on Third Reading. In the mean time, I fully support Amendments Nos. 52 and 57 and am grateful to the noble and learned Lord for tabling them.

On Question, amendment agreed to.

[Amendment No. 53 not moved.]

Clause 20 [Procedural provisions with respect to orders]:

The Earl of Mar and Kellie moved Amendment No. 54:

Page 17, line 2, leave out ("or indefinitely").

The noble Earl said: My Lords, this amendment seeks to remove the possibility of an antisocial behaviour or sex offender order being indefinite. That is not to say that I believe that antisocial behaviour is antisocial only when it is proscribed by an order. Clearly, it is always unacceptable.

What I do not believe to be right is the idea that a citizen should have a punishable order hanging over him in perpetuity when he may not have committed any offence to warrant the imposition of such an order. It is the burden of punishment in perpetuity that concerns me. If a citizen on an order has not breached the terms of the order during a period of, say, five years, I believe that the pattern of behaviour with which the order aimed to deal has successfully changed. I beg to move.

Lord Hardie: My Lords, this amendment would mean that the sheriff would have to impose a specific duration for every order at the outset to prevent the orders being of indefinite length. As I indicated in Committee, it is not normal practice to restrict the judiciary's discretion over the terms of civil orders such as these, at least in Scotland. The sheriff should be able to determine in each case whether he wishes to specify a particular period of the order or leave it to run indefinitely. One of the factors that he will take into account is the nature of the conduct complained of and the duration of it. However, the person against whom the order is made is free to apply to the sheriff at any time to have it revoked. That is a system of review. He or she can bring the matter back before the sheriff at any time he or she thinks is appropriate.

In addition, the planned guidance will make clear that the applicant should periodically review the continuing need for all orders, particularly those of indefinite duration. Not only does the person who is subject to the order have the right to come back to the sheriff as and when he or she wishes but the guidance will recommend that the applicant should review such orders on a regular basis and seek to have them revoked when that becomes appropriate. I do not necessarily accept that the failure to breach an order over a period of time means that the order should not remain in place. It may be that the fact that the order is there has prevented conduct of that type. Obviously, that factor would have to be considered. I should like to deal with one point raised by the noble

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and learned Lord, Lord Mackay of Drumadoon. Amendment No. 52 provides a power of arrest for interim orders.

The Earl of Mar and Kellie: My Lords, I liked this amendment because it provided an incentive for the individual. Normally only the most serious offences merited indeterminate sentences. Perhaps that analogy is not strictly true because this is a civil law order. I still believe that if someone has refrained from unacceptable behaviour for five years, the habit has been broken. However, I should like to consider what the noble and learned Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 55:

Page 17, line 21, leave out ("shall continue to have effect") and insert ("may be suspended").

The noble Earl said: My Lords, I beg to move Amendment No. 55 whose purpose is to give the court the opportunity to suspend the order while an appeal is being considered. This will bring the orders into line with the criminal law. Often prisoners are released on the basis of interim liberation, or, as they call it, "interim lib". This amendment seeks to resolve that anomaly. It is unfair that a citizen should be charged with breaching an order when it is not certain that the order is valid. However, I concede that a further reported incident during an appeal would tend to confirm the need for such an order. I believe that the sheriff should have the opportunity to suspend the order during the appeal process.

Lord Mackay of Drumadoon: My Lords, I support Amendment No. 55, and am speaking to Amendment No. 56 which seeks to achieve the same objective. The purpose of the two amendments is to enable an appeal court, whether it be the Sheriff Principal or the Court of Session, to suspend an order pending the full hearing of the appeal. That was a matter that was debated on the second day of Committee (Official Report, 10/2/98; cols. 1050-51). On that occasion, the noble and learned Lord the Lord Advocate made a number of points in response to the arguments which were advanced.

As the noble and learned Lord said, an antisocial behaviour order should have effect immediately. I agree with that. Nothing in the amendments would automatically have a contrary effect. Secondly, he suggested that such orders should remain effective until revoked. I also agree with that, because there is nothing in either of the amendments which would bring about an automatic recall or revocation of an order pending the decision on appeal.

Thirdly, the noble and learned Lord stressed, as other Ministers have stressed, that the order is of a prohibitory nature only, and does not impose any requirements upon those against whom it is made. While, on one view that is strictly true, there can be no doubt that if an order prevents someone from going to his or her own house, that person will perceive that as being a requirement placed upon him, and, further than that, perceive it as a

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punishment imposed upon him or her. Therefore that person will be anxious to have it recalled if there are grounds to do so.

Finally, the noble and learned Lord suggested that there was no need for such orders to be suspended. I do not argue that in every case which is appealed there is a need for such orders to be suspended, but there is a need for there to be a power for the appeal court, in its discretion, to grant an interim recall of the order, pending a full hearing of the appeal, which may, because of the need to apply for legal aid or the need to find court time, take a few weeks or months before it can be heard.

As the noble and learned Lord will be aware, when actions of interdict are appealed, whether to the Sheriff Principal or the Court of Session, similar issues arise. If the orders appealed against are interim orders, they remain effective unless they are recalled by the appeal court pending the full hearing of the appeal. If, on the other hand, they are permanent interdicts, they are not effective until the appeal court has adjudicated upon the issue.

It is accepted--it was mentioned earlier this evening by the noble and learned Lord--that there may be instances where, if the local authority is not minded or prepared to act in a particular case, an individual who has been upset, distressed or annoyed by antisocial behaviour can raise interdict proceedings in his own name. In that event, if the court finds in his favour, and the decree is appealed, the decree or the interdict, will be suspended pending the hearing of the appeal.

It seems equitable that the appeal court should have a similar discretion with these orders. If it does not, there is a risk, in some cases at least, of injustice which will not merely adversely affect the defenders who are the subject of such orders, but will bring this remedy into a measure of disrepute. I therefore hope that it will be possible for the Government to find a way to meet the argument which the noble Earl and I have advanced.

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